196 members of Congress sue Trump

If Trump won’t abide by the Constitution’s emoluments clause, lawmakers want the courts to make him.

Secretary of State Rex Tillerson, left, and White House Senior Adviser Jared Kushner listen as President Donald Trump speaks during a Cabinet meeting, Monday, June 12, 2017, in the Cabinet Room of the White House in Washington. CREDIT: AP Photo/Andrew Harnik

Nearly 200 Democratic lawmakers will file suit against President Donald Trump on Wednesday, alleging that he is violating the Constitution’s foreign emoluments clause by accepting payments from foreign governments through his businesses while president.

The plaintiffs include 30 Senators and 166 members of the House of Representatives — but a source familiar with the lawsuit said more lawmakers could join an amended complaint later if they wished. The case will be lead by the nonprofit Constitutional Accountability Center.

The lawsuit — and the sheer number of members of Congress participating — reflects the deep frustration of Democratic lawmakers with the leeway the White House has been given by the Republican majority in Congress.

Traditionally, Congress is taxed with oversight and accountability of the executive branch, which they carry out through hearings and other means. But the way Congress is set up gives extraordinary control to the majority party — and the Republicans in charge of the oversight committees have refused to investigate Trump, a Republican president, on issues involving his business activities.

Hamstrung by more traditional oversight means, and already shut out of any sort of working relationship with the president, Democratic lawmakers have now turned to the courts to try to force Trump to comply with the Constitution.

The Emoluments Clause

The chief issue in this lawsuit — as in a few others facing the president — is the emoluments clause of the Constitution. This previously obscure section of the Constitution is one of the federal government’s chief protections against foreign bribes and international corruption.

The constitution’s framers, concerned about foreign influence on the fledgling American nation, enacted it to silo the president off from conflicts of interest, real or perceived: specifically, it prohibits the U.S. president from receiving “any present, Emolument, Office, or Title, of any kind whatever” from a foreign government or its dignitaries without the express consent of Congress.

President Trump, however, has maintained as president his ownership of his eponymous real estate empire — an ideal entity for foreign governments to funnel money into Trump’s pocket by patronizing his hotels and properties.

Evidence suggests that governments are taking advantage: Trump’s new downtown DC hotel has hosted embassy events for Azerbaijan and Kuwait, who switched to the Trump hotel from their original booking at the Four Seasons. The hotel hosted an annual conference sponsored by the Turkish state last month — a conference that in previous years was habitually held at the Ritz Carlton. And, since Trump’s election, a Saudi-backed lobbying campaign spent around $270,000 at the hotel for lodging and catering costs.

While much of the focus on emoluments has centered on payments made at Trump’s hotels, the clause affects other parts of Trump’s business empire as well. Foreign governments have regulatory control over his properties abroad — for example, his company just opened a golf course in Dubai, and is planning a second, both of which will rely on the UAE government for water, roads, liquor licenses, and more. Governments could give his properties preference, leeway, or plum contracts over his competition as an attempt to cozy up to his administration.

In another potential example, Trump was recently granted a long-coveted trademark by the Chinese government. The ten-year legal battle that abruptly turned his way just as he became the Republican nominee for president.

Trump’s inadequate response

In response to the criticism of his conflicts of interest— which has been coming both from Democratic lawmakers and from independent ethics watchdogs both inside and outside the federal government — Trump has offered only half measures and illusions of separation, most of which have since been revealed as shams.

He handed day-to-day management of his businesses over to his adult sons, initially insisting that they wouldn’t discuss the business with him.

The conditions of his trust, however, enable him to draw on the profits at any time, and both Eric and Donald Jr. have said that they talk to their father frequently and give him reports on how the business is doing. Both sons, who are ostensibly separated from the Trump government, have also met with GOP leaders to consult on political strategy and hawked Trump’s PAC and policies, further eroding even the appearance of a separation.

With regards to emoluments, his lawyer stated in January that Trump would be donating the profits from foreign governments to the US treasury. The Trump Organization, however, subsequently said that they wouldn’t be turning the money over until the end of the year at the earliest.

And when asked for more detail by Congressional Democrats, they clarified that actually, they wouldn’t be asking foreign government representatives to identify themselves because it would be “impractical” and “diminish the guest experience of our brand.”

In short, the Trump’s proposed solution on emoluments is hardly a solution at all. They are all-but certain to not turn over all the emoluments, given their refusal to identify guests who are foreign government representatives. They’ve also yet to provide any information as to whether the alleged donations will be made public — meaning the public may have no way to verify how and if Trump is keeping his promise.

So now, faced with Trump’s disdain for the emoluments clause and the Republican majority in Congress’ indifference, interested parties are turning to the courts to attempt to make Trump comply.

The growing list of lawsuits

The suit filed by the lawmakers on Wednesday is the latest attempt to force Trump to confront the emoluments clause through the courts. The first was filed just days after Trump’s inauguration by the watchdog group Citizens for Responsibility and Ethics in Washington. Another was filed on Monday by the District of Columbia and the state of Maryland.

All of the suits are similar in their broad strokes: they allege that Trump is violating the Constitution, and that he is profiting off the presidency through his businesses.

Where they differ, however, is in the matter of standing — in order to merit a lawsuit, the plaintiffs have to be able to show that they have been harmed by Trump’s actions.

The CREW case, for example, argued initially that they had standing because Trump’s actions caused them extra work, an argument legal observers predicted was likely to be met with extreme skepticism by a judge. They have since added local restaurants as plaintiffs, who say they have lost business due to foreign governments choosing the Trump hotel for their events.

The suit filed by Maryland and DC appears to be on firmer ground: Attorneys General representing the two governments, Brian E. Frosh and Karl A. Racine respectively, argue that the Trump hotel is siphoning business off from local conference halls that are taxpayer funded, thereby causing harm.

Norman Eisen, who was chief White House ethics lawyer for President Barack Obama and is a chairman of CREW, also told the Washington Post that Maryland and DC are some of the “most perfect plaintiffs” to sue Trump because they have a stake in enforcing the constitution.

The lawmakers’ suit attacks the emoluments issue from another side, one uniquely available to members of Congress.

One of the key tenets of the emoluments clause is that the president is required to ask Congress for permission before accepting any payments or gifts. By not following proper procedure and asking them, the suit alleges, Trump is denying them of their rights.

“We are injured by being denied our right to vote on this, that’s our standing,” House Judiciary member Jerry Nadler (D-NY) told Politico about the suit.

The lawmakers point out that Trump’s failure to follow protocol and ask for permission to accept the emoluments also raises another issue: If he truly believed they posed no conflict of interest, he could simply ask Congress to approve them.

His failure to do so, the suit alleges, points to Trump having something to hide.

The suit filed by Maryland and DC also makes an issue of the lesser-known domestic emoluments clause, which prohibits the president from receiving gifts or payments from the federal and state governments other than his salary. The suit alleges that Trump received such a gift from the General Services Administration when it ruled there was no issue with the lease for his downtown DC hotel — despite a clause in the lease prohibiting government employees or elected from partaking.

It also alleges that Trump is forcing states to compete for his favor through creating favorable business situations. Trump’s sons announced last week a plan to build a new network of domestic hotels, mostly in states that supported Trump in the election. The plan came despite an initial promise that the Trump organization would make “no new deals” while president.

Why they matter

Crucially, the emoluments clause has never been litigated or tested before — allowing the Trump administration to push their own interpretation, as its application has never been fully defined by the legal system.

In laying out his initial plan to donate the profits accrued from foreign governments, for example, Trump’s lawyer Sheri Dillon argued that paying for a service at a Trump hotel was not an emolument.

“Some people want to define emoluments to cover routine business transactions, like paying for hotel rooms. They suggest that the Constitution prohibits the businesses from even arm’s-length transactions at the president-elect has absolutely nothing to do with and isn’t even aware of. These people are wrong,” Dillon claimed.

Constitutional and ethics experts immediately and sharply disagreed.

“Trump’s lawyer would flunk constitutional law at any halfway decent law school,” Larry Tribe, who teaches Constitutional law at Harvard and who is one of the lawyers on the CREW case against Trump, tweeted in response.

Trump’s team, however, has run with this defense ever since — arguing in response to the CREW lawsuit that market-rate payments for Trump’s hotel do not constitute an emolument as the Constitution defines it.

One of the side effects of these lawsuits will be a firmer definition of the scope and application of the emoluments clause, making it more difficult for Trump and future presidents to wiggle around. A lot depends on how far the lawsuits get, but unless they are dismissed over issues of standing, they are likely to work their way all the way up the court system to the Supreme Court.

They also serve another purpose: As part of their discovery process, it is likely that the plaintiffs will ask for Trump’s tax returns.

From foreign profits to foreign debt, Trump has been unprecedentedly opaque about his finances for an American president. His tax returns pose the best chance at clearing up lingering questions over conflicts of interest and whether his decisions as president stand to benefit his pockets as a citizen.

But Trump has thus far refused all calls to make his tax returns public — meaning that these lawsuits may pose the public’s best chance at finally getting a look at exactly what the president’s business empire really looks like.